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As filed with the Securities and Exchange Commission on August 4, 1999
Registration No. _____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
ACME UNITED CORPORATION
-----------------------
(Exact name of registrant as specified in its charter)
Connecticut 06-0236700
----------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
75 Kings Highway Cutoff 06430
- ----------------------- -----
Fairfield, CT (Zip Code)
- -------------
(Addresses of principal
executive offices)
ACME UNITED CORPORATION DEFERRED COMPENSATION PLAN FOR DIRECTORS
ACME UNITED CORPORATION DEFERRED COMPENSATION PLAN
FOR WALTER C. JOHNSEN
----------------------------------------------------------------
(Full title of plan)
(Name, address and telephone
number of agent for service) (Copy to:)
Ronald P. Davanzo James E. Rice, Esquire
Acme United Corporation Brody, Wilkinson and Ober, P.C.
75 Kings Highway Cutoff 2507 Post Road
Fairfield, CT 06430 Southport, CT 06490
(203) 332-7330 (203) 319-7100
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
- --------------------------------------------------------------------------------
Common Stock
(par value 129,567 $1.9375 $251,036 $69.79
$2.50 per share) shares (1) (1) (1)
(1) Pursuant to Rule 457(h)(1), the proposed maximum offering price per
share, proposed maximum aggregate offering price and the amount of the
registration fee are based on the average of the daily high and low prices of
Acme United Corporation Common Stock on the American Stock Exchange on August
4, 1999 (i.e., $1.9375 per share).
PART I. Information Required in the Section 10(a) Prospectus
ITEM 1. Plan Information*
ITEM 2. Registrant Information and Employee Plan Annual Information*
PART II. Information Required in the Registration Statement
ITEM 3. Incorporation of Documents by Reference
The following documents have been filed by Acme United Corporation (the
"Registrant") with the Securities and Exchange Commission and are
incorporated herein by reference:
1. Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934
(the "Exchange Act").
2. All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act, since the end of the
fiscal year covered by the Form 10K referred to
above.
3. The description of Registrant's Common Stock
contained in Registrant's S-1 Registration Statement
No. 230682 filed with the Commission on November 7,
1968 and amended by Substantive Amendment No. 1 on
December 31, 1968 and by Substantive Amendment No. 2
on January 31, 1969.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934
subsequent to the filing of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which de-registers all securities
then remaining unsold, shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded
to the extent that a statement contained in any other subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such prior statement. The
documents required to be so modified or superseded shall not be deemed
to constitute a part of this Registration Statement, except as so
modified or superseded.
----------------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
ITEM 4. Description of Securities
A description of the Registrant's Common Stock has been incorporated by
reference into this Registration Statement. See Item 3, above.
ITEM 5. Interests of Named Experts and Counsel
None
ITEM 6. Indemnification of Directors and Officers
Connecticut General Statutes Sections 33-771 through 33-778 provide for
mandatory, permissive and court-ordered indemnification of directors
who are parties to a proceeding. For purposes of these indemnification
statutes a "proceeding" is defined as any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal.
A. Unless limited by its certificate of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a party
because he is or was a director of the corporation against reasonable
expenses incurred by him in connection with the proceeding. The
Registrant has no provision in its certificate of incorporation
limiting the effect of this mandatory indemnification.
B. A corporation may indemnify a person who is made a party to a
proceeding because he is or was a director if: 1) he conducted himself
in good faith; and 2) he reasonably believed (A) in the case of conduct
in his official capacity with the corporation, that his conduct was in
its best interests, and (B) in all other cases, that his conduct was at
least not opposed to its best interests; and (3) in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct
was unlawful.
A corporation is authorized to indemnify a director in a specific case
only after a determination has been made that indemnification of the
director is permissible in the circumstances because he has met this
standard of conduct set forth in the previous paragraph. This
determination must be made: 1) by the board of directors by majority
vote of a quorum consisting of directors not at the time parties to the
proceeding; 2) if such a quorum cannot be obtained, by majority vote of
a committee duly designated by the board of directors, in which
designation directors who are parties may participate, consisting
solely of two or more directors not at the time parties to the
proceeding; 3) by special legal counsel (a) selected by the board of
directors or its committee, or (b) if a quorum of directors cannot be
obtained and a committee cannot be designated as provided above,
selected by majority vote of the full board of directors, in which
selection directors who are parties may
participate; or 4) by the shareholders, but shares owned or voted under
the control of directors who are at the time parties to the proceeding
may not be voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
expenses must be made in the same manner as the determination that
indemnification is permissible, except that if the determination is
made by special legal counsel, these matters are to be determined by
those entitled to select such counsel.
A corporation may not, however, indemnify a director in connection with
a proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in connection with
any other proceeding charging improper personal benefit to him, whether
or not involving his official capacity, in which he was adjudged liable
on the basis that personal benefit was improperly received by him. Any
indemnification permitted in connection with a proceeding by or in the
right of the corporation is limited to reasonable expenses incurred by
the director in connection with the proceeding.
A corporation may advance reasonable expenses incurred by a director in
connection with a proceeding if: (1) the director furnishes the
corporation with a written affirmation of his good faith belief that he
has met the standard of conduct for receiving indemnification; (2) the
director furnishes the corporation with a written undertaking to repay
any advances if it is ultimately determined that he did not meet the
standard of conduct; and (3) the corporation determines that the facts
then known do not preclude indemnification. The director's obligation
to repay must be a general unlimited obligation of the director but it
need not be secured and may be accepted without any reference to
financial ability.
C. Unless a corporation's certificate of incorporation provides
otherwise, a director of the corporation who is a party to a proceeding
may apply for indemnification to the court conducting the proceeding or
to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers
necessary may order indemnification if it determines: (1) The director
is entitled to mandatory indemnification; or (2) the director is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he met the standard of conduct for
permissive indemnification or was adjudged liable to the corporation in
connection with a proceeding by or in the right of the corporation or
in connection with any other proceeding charging improper personal
benefit to him, whether or not involving his official capacity, in
which he was adjudged liable on the basis that personal benefit was
improperly received by him, but if he was adjudged so liable his
indemnification is limited to reasonable expenses incurred. The
Registrant has no provision in its certificate of incorporation
limiting the effect of this provision.
D. Officers who are not directors of the corporation are entitled to
the same indemnification as directors. In addition, a corporation may
indemnify and advance expenses to an officer, employee or agent who is
not a director to the extent, consistent with public policy, that is
permitted by its certificate of incorporation, by-laws, general or
specific action of its board of directors, or contract.
E. The corporation laws of Connecticut which provide, among other
things, for the indemnification of directors and officers were
substantially revised effective January 1, 1997.
Indemnification under the prior law was always mandatory when the
conditions for providing indemnification were met. In deference to the
prior law, the current law provides that any corporation incorporated
prior to January 1, 1997, shall, except to the extent that the
certificate of incorporation expressly provides otherwise, provide its
directors and officers with the full amount of indemnification that the
corporation is permitted to provide to a director pursuant to the new
law subject only to a determination that indemnification is
permissible, as described above. The Registrant's certificate of
incorporation does not contain any provision that would alter the scope
of indemnification that directors or officers of corporations formed
prior to January 1, 1997, are afforded under the new law.
ITEM 7. Exemption from Registration Claimed
Not Applicable.
ITEM 8. Exhibits
4(a) Acme United Corporation Deferred Compensation Plan for
Directors
4(b) Amendments to Acme United Corporation Deferred Compensation
Plan for Directors
4(c) Acme United Corporation Deferred Compensation Plan for
Walter C. Johnsen.
5 Opinion of Counsel Regarding the Legality of the Shares of
Common Stock being Registered
23(a) Consent of Counsel (included in Exhibit 5)
23(b) Consent of Ernst & Young LLP, Independent Auditors
23(c) Consent of PricewaterhouseCoopers LLP, Independent
Accountants
ITEM 9. Undertakings
A. Rule 415 Offering. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the
effective date of the Registration Statement (or most recent
post-effective amendment thereof) which, individually or in
the aggregate, represents a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the law or high end of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and 1(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. Filings Incorporating Subsequent Exchange Act Documents by
Reference. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of any employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
C. Securities and Exchange Commission Position on Indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the Town of Fairfield, State of Connecticut, on this 4th day of
August, 1999.
Acme United Corporation
By:/s/ Walter C. Johnsen
---------------------------
Walter C. Johnsen
President and Chief Executive Officer
[Principal Executive Officer]
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
--------- ----- ----
/s/ Walter C. Johnsen President, Chief Executive August 2, 1999
- ------------------------------ Officer and Director
Walter C. Johnsen
/s/ Gary D. Penisten Chairman of the Board August 3, 1999
- ------------------------------ and Director
Gary D. Penisten
/s/ Ronald P. Davanzo Vice President, Treasurer, August 3, 1999
- ------------------------------ Secretary and Principal
Ronald P. Davanzo Financial Officer
/s/ William K. Gyuricsko Controller August 3, 1999
- ------------------------------
William K. Gyuricsko
/s/ Wayne R. Moore Director August 2, 1999
- ------------------------------
Wayne R. Moore
/s/ George R. Dunbar Director August 3, 1999
- ------------------------------
George R. Dunbar
/s/ David W. Clark , Jr. Director August 3, 1999
- ------------------------------
David W. Clark, Jr.
/s/ Richmond Y. Holden, Jr. Director August 3, 1999
- ------------------------------
Richmond Y. Holden, Jr.
/s/ Peter H. Kamin Director August 4, 1999
- ------------------------------
Peter H. Kamin
INDEX OF EXHIBITS ACCOMPANYING THE S-8 REGISTRATION STATEMENT
Exhibit Description Sequential
Page
Number
4(a) Acme United Corporation Deferred Compensation Plan for Directors
4(b) Amendments to Acme United Corporation Deferred Compensation Plan
for Directors
4(c) Acme United Corporation Deferred Compensation Plan for Walter C.
Johnsen.
5 Opinion of Brody, Wilkinson and Ober, P.C. Regarding the Legality
of the Shares of Common Stock
23(a) Consent of Brody, Wilkinson and Ober, P.C.*
23(b) Consent of Ernst & Young LLP, Independent Auditors
23(c) Consent of PricewaterhouseCoopers LLP, Independent Accountants
*Included in exhibit 5.
EXHIBIT 4(a)
------------
ACME UNITED CORPORATION
DEFERRED COMPENSATION PLAN FOR DIRECTORS
Pursuant to the action taken by the Board of Directors at. its meeting
on November 20, 1995, payment of Director's fees earned subsequent to November
19, 1995 shall be deferred until the Company completes four consecutive quarters
with aggregate earnings per share of $.50 or more, the Company or one of its
major businesses has been sold or a change in control of the Company has
occurred. Until one of such events occurs, the fees as earned shall be accrued
by the Company and when one of such events does occur, the accrued fees shall be
paid as promptly as possible thereafter.
Each Director shall be offered the option of receiving, when such fees
become payable, (a) an amount equal to the fees earned during the period of
deferral, or (b) the sum of (i) the amount of the fees earned during the period
of deferral, plus or minus, as the case may be, (ii) the aggregate amount of the
fees earned each month during the period of deferral times the Percentage
Increase or Decrease in the Company's Stock Price index ("Index"). The
"Percentage Increase or Decrease in the Index" shall mean the increase or
decrease expressed as a percentage in the Index from the first business day of
the month during which fees were earned and the Index on the last business day
prior to the date of payment.
The Index for any given day shall be the closing price on the American
Stock Exchange for the Company's stock on such day.
All payments pursuant to the Deferred Compensation Plan for Directors
shall be without interest.
.
The amount of Director's fees shall be $1,500 ($2,500 as of January 1,
1998) per quarter plus $500 for each Board of Directors meeting attended. The
fees earned for service on the Committees of the Board shall be $500 per
Committee meeting and $500 for each one-half day, or major portion thereof,
devoted to Committee work. The Chairman of the Executive Committee will earn an
additional $500 per day to compensate for the broader responsibility and related
effort.
EXHIBIT 4(b)
------------
AMENDMENT TO ACME UNITED CORPORATION
DEFERRED COMPENSATION FOR DIRECTORS
ADOPTED JUNE 24, 1997
The Acme United Corporation Deferred Compensation Plan for Directors is
amended by adding six new paragraphs after the current fourth paragraph and
before the current final paragraph as follows:
Notwithstanding, the foregoing, action taken by the board of directors
on June 24, 1997 authorized that effective July 1, 1997 any fees that have been
deferred under this plan will be paid when due in treasury shares. Less than
full shares will be paid in cash. Treasury shares will be allocated each month
based on the closing price of Acme United shares on the first day of the month
during which the fees were earned divided into fees earned. Also approved on
June 24, 1997 were two new long-term payout options.
The first option authorizes deferral of receipt of treasury shares
based on fees earned until the board member retires or otherwise departs from
the board. If a major business is sold or a change of control of the company is
imminent, at the discretion of the board the stock balance in each director's
account can be distributed to the director or to his estate immediately prior to
culmination of the transaction.
The second option also authorizes deferral of receipt of treasury
shares based on fees earned until the board member retires or otherwise departs
from the board; however, the payout is deferred over a four year period. Upon
departure from the board, 20% of the shares will be paid out immediately and the
remainder will be paid in four equal installments over the next four
anniversaries of the board member's departure. Early distribution of stock is as
described in the previous paragraph. In the event of death, all stock will be
distributed promptly to the director's estate,
Those not electing the "long term payout option" and instead electing
indexing either for prior or future fees will be paid in treasury shares at the
time the earnings goals in paragraph one are attained, but in no case will the
payout occur sooner than six months following the election.
If dividends are paid prior to initiation of the distribution of
shares, an amount equivalent to the dividends that would have been earned will
be added to the deferred treasury stock calculation. The directors or their
estates will be responsible for all taxes which might be due. The company will
always maintain a sufficient number of treasury shares to cover the deferrals
and will take action to ensure that all stock is registered.
All directors who are not salaried employees of the company are
eligible to participate.
EXHIBIT 4(c)
------------
ACME UNITED CORPORATION
DEFERRED COMPENSATION PLAN FOR
WALTER C. JOHNSEN
Pursuant to the action taken by the Compensation Committee of the Board
of Directors at its meeting on December 17, 1996, payment of a salary increase
given Mr. Walter C. Johnsen of $30,000 per year effective January 1, 1997 shall
be deferred until the company completes four consecutive quarters with aggregate
earnings per share of $.50 or more, the company or one of its. major businesses
has been sold or a change in control of the company has occurred. At the
employee's discretion the above salary and any additional increases or bonuses
can be deferred under this Agreement beyond accomplishment of the earnings goal.
The deferred salary, when payable, will be the sum of (1) the amount of
the salary increase earned during the period of deferral, and (ii) plus or
minus, as the case may be, the aggregate amount of the increase earned each
month during the period of deferral times the percentage increase or decrease in
the company's stock price Index ("Index"). The percentage increase or decrease
in the Index shall mean the increase or decrease expressed as a percentage in
the Index from the first business day of the month during which fees were earned
and the Index on the last business day prior to the date of payment. The Index
for any given day shall be the closing price on the American Stock Exchange for
the company's stock on such day. All payments pursuant to this plan shall be
without interest.
Notwithstanding the foregoing, action taken by the Board of Directors
on July 29, 1997 authorized that effective August 1, 1997 any of the increase
that has been deferred under this plan and appreciation, if any, will be paid
when due in treasury shares. Less than full shares will be paid in cash..
Treasury shares will be allocated each month based on the closing price of Acme
United shares on the first day of each month divided into the total salary
increase earned during the month. If dividends are paid prior to initiation of
the distribution of shares, an amount equivalent. to the dividends that would
have been earned will be added to the deferred treasury stock calculation.
Any time after one of the three events in paragraph one occurs all
stocks earned will be distributed to Mr. Johnsen or his estate on demand. Mr.
Johnsen or his estate will be responsible for all taxes which might. be due. The
company will maintain. a sufficient number of treasury shares to cover the
deferrals and will take action to ensure that all stock is registered. In no
case will payout occur sooner than six months prior to the date this document is
signed.
/s/ Gary D. Penisten 8/1/97 /s/ Walter C. Johnsen 8/11/97
- ------------------------------- -----------------------------------------
Gary D. Penisten Date Walter C. Johnsen Date
James E. Rice
Direct Line: 319-7112
OPINION OF COUNSEL REGARDING THE LEGALITY OF THE SHARES OF COMMON STOCK --
EXHIBIT 5
August 3, 1999
Acme United Corporation
75 Kings Highway Cutoff
Fairfield, CT 06430
Dear Sir or Madam:
We have acted as counsel for Acme United Corporation (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission of the Form S-8 Registration Statement (the "Registration Statement")
relating to 129,567 shares of Common Stock, par value $2.50 per share, of the
Company (the "Common Stock") to be offered pursuant to the Acme United
Corporation Deferred Compensation Plan for Directors and the Acme United
Corporation Deferred Compensation Plan for Walter C. Johnsen (the "Plans").
We have examined and are familiar with (i) the Articles of
Incorporation and the Bylaws of the Company, (ii) the corporate proceedings
authorizing the issuance of 129,567 shares of Common Stock pursuant to the
Plans, and (ii) such other documents and instruments as we have considered
necessary for the purposes of the opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the
State of Connecticut.
2. Upon issuance and delivery of the shares of Common Stock
pursuant to the Plans, such shares will be validly issued,
fully paid, and nonassessable.
We hereby consent to the use of this opinion and our names in
connection with the Registration Statement filed with the Securities and
Exchange Commission to register the shares of Common Stock to be offered as
aforesaid.
Very truly yours,
/s/ Brody, Wilkinson and Ober, P.C.
-----------------------------------
Brody, Wilkinson and Ober, P.C.
Exhibit 23(b)
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Acme United Corporation Deferred Compensation Plan for
Directors and Acme United Corporation Deferred Compensation Plan for Walter C.
Johnsen of our report dated March 25, 1999, with respect to the consolidated
financial statements and schedule of Acme United Corporation and subsidiaries
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
------------------------
Ernst & Young LLP
Hartford, Connecticut
July 30, 1999
Exhibit 23(c)
Consent of PricewaterhouseCoopers LLP, Independent Accountants
We hereby consent to the incorporation by reference in the Registration
Statements of Acme United Corporation and Subsidiaries on Forms S-8 of our
report dated March 19, 1998, except as to the information presented in Note 2,
for which the date is March 26, 1999, on our audits of the consolidated
financial statements and financial statement schedule of Acme United Corporation
and Subsidiaries as of December 31, 1997, and for the years ended December 31,
1997 and 1996, which appear in Acme United Corporation's Annual Report on Form
10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
- -------------------------------
PricewaterhouseCoopers LLP
Hartford, Connecticut
August 2, 1999